Morales Arreola v. USA et al
Filing
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ORDER Granting 16 Defendants' Motion to Dismiss by Judge Christine M. Arguello on 2/28/2018. (swest)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 17-cv-02066-CMA
BERNARDO MORALES ARREOLA,
Plaintiff,
v.
UNITED STATES OF AMERICA,
U.S. CITIZENSHIP AND IMMIGRATION SERVICES, and
KRISTI BARROWS, District Director of USCIS,
Defendants.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
This matter is before the Court on Defendants’ Motion to Dismiss for Lack of
Subject Matter Jurisdiction (Doc. # 16), which the Plaintiff Bernardo Morales Arreola
opposes (Doc. # 20). The sole issue presented for review is whether this Court has
jurisdiction under the Administrative Procedure Act (APA) to hear Mr. Morales Arreola’s
challenge to the United States Citizenship and Immigration Services’ (USCIS) denial of
his application for adjustment of status, given that removal proceedings are
simultaneously pending against him. For the following reasons, the Court concludes
that it does not have jurisdiction over this action and must accordingly dismiss this case.
I.
BACKGROUND
Mr. Morales Arreola is a native and citizen of Mexico who lives in Aurora,
Colorado. (Doc. # 1 at ¶ 7.) Mr. Morales Arreola last departed from the United States
sometime in December 2006; he then re-entered in June 2007 after being inspected
and admitted using his border crossing card. (Id. at ¶ 2.)
On July 18, 2016, Mr. Morales Arreola filed an I-485 application for adjustment of
status. (Id. at ¶ 3.) USCIS denied his application on July 7, 2017, finding that Mr.
Morales Arreola was inadmissible to the United States under INA 212(a)(9)(B)(i)(II),
which states that any alien who “has been unlawfully present in the United States for
one year or more, and who again seeks admission within 10 years of that date of such
alien’s departure or removal from the United States is inadmissible.” (Id. at ¶¶ 3,4.)
On August 28, 2017, Mr. Morales Arreola commenced this action seeking judicial
review of USCIS’s denial of his application for a status adjustment under the APA.
(Doc. # 1.) At the time, Mr. Morales Arreola had no other remedies to pursue. On
January 9, 2018, Defendants issued a Notice to Appear (NTA), charging Mr. Morales
Arreola as removable under the INA. (Doc. # 16 at 7–9.) A removal proceeding hearing
is scheduled for May 2018. (Doc. # 16 at 2, n. 2.)
Defendants’ instant Motion to Dismiss, filed on January 17, 2018, argues that the
recently-filed NTA and pending removal proceedings strip this Court of jurisdiction
because the challenged USCIS denial is not final as required under the APA, given that
Mr. Morales Arreola “can continue to pursue his application for adjustment of status
through administrative channels.” (Id. at 1–2.)
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II.
LAW
A. FINALITY UNDER THE APA
Under the APA, agency action is subject to judicial review only when it is either:
(1) made reviewable by statute; or (2) a “final” action “for which there is no other
adequate remedy in a court.” 5 U.S.C. § 704. No statute authorizes judicial review over
denials of status adjustment, so the Court must determine whether USCIS’s denial of
the Mr. Gomez’s application was a “final” agency action for which there is no other
adequate remedy.
Generally, two conditions must be satisfied for agency action to be “final” under
the APA. “First, the action must mark the consummation of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And
second, the action must be one by which rights or obligations have been determined, or
from which legal consequences will flow.” U.S. Army Corps of Engineers v. Hawkes
Co., 136 S. Ct. 1807, 1813 (2016) (citing Bennett v. Spear, 520 U.S. 154 (1997)); see
also Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (“The core question is
whether the agency has completed its decision-making process, and whether the result
of that process is one that will directly affect the parties.”). An agency action is not final
if it “does not of itself adversely affect complainant but only affects his rights adversely
on the contingency of future administrative action.” Rochester Tel. Corp. v. United
States, 307 U.S. 125, 130 (1939); Jama v. Dep’t of Homeland Sec., 760 F.3d 490, 496
(6th Cir. 2014).
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Likewise, the APA establishes that agency action is “final” and therefore “subject
to judicial review” only after “an aggrieved party has exhausted all administrative
remedies expressly prescribed by statute or agency rule.” Darby v. Cisneros, 509 U.S.
137 (1993) (quoting 5 U.S.C. § 704).
B. FINALITY OF A CHALLENGE TO DENIAL OF STATUS ADJUSTMENT
Broadly speaking, “adjustment of status” is an application filed by an alien who is
physically in the United States to adjust his non-immigrant status to immigrant status,
i.e. permanent resident status.
Pursuant to 8 C.F.R 245.2(a)(5)(ii), “No appeal lies from the denial of an
application [for an adjustment of status]. . . but the applicant . . . retains the right to
renew his or his application in proceedings under 8 CFR part 240,” i.e. in removal
proceedings. In other words, without a pending removal proceeding, a denial of status
adjustment is final because there is no appeal to a superior administrative agency.
On the other hand, when a NTA is issued and removal proceedings are pending,
further administrative relief is available. Indeed, the immigrant is given the full
opportunity to renew his application and develop his status adjustment arguments
before an IJ. See 8 C.F.R. §§ 245.2(a)(5)(ii), (c), 1245.2(a) (applicant “retains the right
to renew his or her application in [removal] proceedings”). The IJ then has authority to
modify or reverse USCIS’s denial, 8 C.F.R. § 1240.1(a)(1)(ii), and has “exclusive
jurisdiction to adjudicate any application for adjustment of status the alien may file.” 8
C.F.R. § 1245.2(a)(1)(i).
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III.
ANALYSIS
Considering these legal principles, the Court finds that the issuance of an NTA
and commencement of removal proceedings have stripped this Court of jurisdiction over
this case. Because Mr. Morales Arreola will have the opportunity to renew his
application for adjustment of status, fully develop his arguments, and have it adjudicated
by an IJ, the USCIS’s denial of his previous application does not yet represent the
consummation of the agency’s decision-making process. It is an intermediate step in
his removal process and is not yet final under the APA. 1
In so concluding, the Court joins the majority of circuits to have addressed this
issue. See Pinho v. Gonzales, 432 F.3d 193, 202 (3d Cir. 2005) (an adjustment of
status “decision is final where there are no deportation proceedings pending in which
the decision might be reopened or challenged”); Jama v. Dep't of Homeland Sec., 760
F.3d 490, 497 (6th Cir. 2014) (“For these reasons, we hold that . . . denial of a status
adjustment application are not “final agency actions” reviewable in district court under
the APA” when removal proceedings are ongoing.); Cabaccang v. U.S. Citizenship &
Immigration Servs., 627 F.3d 1313, 1316 (9th Cir. 2010) (“Accordingly, we join our sister
circuits in holding that district courts lack jurisdiction to review denials of status
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Not only does this Court lack jurisdiction because there has not been any final agency action,
but the pendency of removal proceedings also means that Mr. Morales Arreola has not
exhausted his administrative remedies. See Reiter v. Cooper, 507 U.S. 258, 269 (1993).
“Where relief is available from an administrative agency, the plaintiff is ordinarily required to
pursue that avenue of redress before proceeding to the courts; and until that recourse is
exhausted, suit is premature and must be dismissed.” Id. This rule allows agencies to develop
a complete factual record and apply their expertise before judicial review occurs. White
Mountain Apache Tribe v. Hodel, 840 F.2d 675, 677 (9th Cir. 1988). Only in “exceptional
circumstances” is administrative exhaustion not required. Id. This is not an exceptional
circumstance. As mentioned, Mr. Morales Arreola presently has the ability to reopen his
application to adjust status during his pending removal proceeding.
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adjustment if removal proceedings are simultaneously pending.”) (citing Howell v. INS,
72 F.3d 288, 292–93 & n. 5 (2d Cir. 1995); Randall v. Meese, 854 F.2d 472, 481–82
(D.C.Cir. 1988)); Ibarra v. Swacina, 628 F.3d 1269, 1269–70 (11th Cir. 2010) (affirming
that agency action denying status adjustment not final because the plaintiff was
currently in removal proceedings).
Moreover, the Court rejects Mr. Morales Arreola’s argument that “jurisdiction
vested with [this Court] upon the filing of the complain[t] on August 28, 2017,
notwithstanding the subsequent initiation of removal proceedings.” (Doc. # 20 at 2.)
Although jurisdiction is usually determined from the filing of the relevant complaint, afteroccurring events can defeat jurisdiction. Rippey v. Denver U. S. Nat. Bank, 42 F.R.D.
316, 317 (D. Colo. 1967); Hose v. INS, 180 F.3d 992, 996 (9th Cir. 1999); Mollan v.
Torrance, 22 U.S. 537, 6 L. Ed. 154 (1824). Such is the case here. Regardless of the
fact that Defendants issued the NTA charging Mr. Morales Arreola with removability
after the commencement of this action, the pendency of removal proceedings now
means that Mr. Morales Arreola’s claims are not ripe for this Court’s review. Sierra Club
v. Yeutter, 911 F.2d 1405, 1416 (10th Cir. 1990) (courts should use caution against
decision where harm is contingent upon uncertain or speculative future administrative
action).
To hold otherwise would allow plaintiffs to confer jurisdiction on the federal courts
simply by racing to the courthouse before the government initiates removal
proceedings. Moreover, at the conclusion of the removal proceedings, Mr. Morales
Arreola can challenge both the outcome of those proceedings as well as USCIS’s
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actions in a petition for review. Thus, there remains an avenue available for effective
review of USCIS’s decision to deny his status adjustment application, and this suit is not
Mr. Morales Arreola’s “only remedy” as he contends. See Jama, 760 F.3d at 497;
Cabaccang, 627 F.3d at 1317.
The Court is by no means condoning the Defendants’ delayed initiation of
removal proceedings, binding this Court’s hands. The Court sees little reason why
Defendants could not have issued the NTA sooner, saving this Court and the Parties
significant time and resources.
IV.
CONCLUSION
Based on the forgoing analysis, the Court GRANTS Defendants’ Motion to
Dismiss (Doc. # 16) and ORDERS this case dismissed for lack of subject matter
jurisdiction.
DATED: February 28, 2018
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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